J-S47013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN SAMUEL PIZARRO-DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1918 MDA 2018

Appeal from the Judgment of Sentence Entered October 11, 2018

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0002225-2017

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 04, 2019

Appellant, Jonathan Samuel Pizarro-Diaz, appeals from the Judgment of 

Sentence entered by the Dauphin County Court of Common Pleas following 

his convictions of Receiving Stolen Property; Possession of Firearm Prohibited; 

Conspiracy-Manufacture, Delivery or Possession with Intent to Manufacture or 

Deliver; Manufacture, Delivery or Possession with Intent to Manufacture or 

Deliver; and Use/Possession of Drug Paraphernalia.

1 He challenges the 

discretionary aspects of his sentence, as well as the weight of evidence. After 

careful review, we affirm.

We glean the relevant facts from the trial court’s Opinion. See Trial Ct. 

Op., filed 3/8/19, at 3-7. During the early morning hours of March 31, 2017, 

Pennsylvania State Trooper Jay Lownsbery and other members of the 

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1 18 Pa.C.S. § 3925(a); 18 Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 903; 35 P.S. § 

780-113(a)(30); 35 Pa.C.S. § 780-113(a)(32), respectively.
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Pennsylvania State Police Special Emergency Team (“SERT”) executed a 

search warrant at the residence located at 3812 Crooked Hill Road in 

Susquehanna Township in connection with suspected narcotics trafficking. 

The SERT officers arrested eight individuals who had been asleep in various 

areas of the house: Patrick McKenna, Jordy Melendez, Luis “Pupo” Ortiz-Cruz, 

Dennison Ortiz-Cruz, Charlie Vasquez, Trisha Santiago, [Appellant], and 

Elizabeth Grimwold.

In the living room, where officers found McKenna asleep on a futon,

officers recovered a loaded 38-caliber Smith & Wesson revolver from an end 

table adjacent to McKenna. They also recovered an unloaded H&R 32-caliber 

pistol from beneath a pile of clothing in a corner of the living room, an unboxed 

surveillance system, an opened metal canister, and drug paraphernalia spread 

throughout the living room. Throughout the three bedrooms, police officers 

recovered numerous firearms, some loaded with multi-shot magazines, large 

quantities of ammunition, large quantities of cocaine, large quantities of U.S. 

currency, small amounts of marijuana and heroin, drug-packaging materials, 

a coffee grinder with white residue, owe sheets, multiple cell phones, receipts 

reflecting money transfers to Puerto Rico, and body armor.

In the basement, where Appellant and Elizabeth Grimwold had been 

sleeping in a makeshift bedroom, officers observed Appellant’s I.D., his 

paystub, and bank paperwork, along with two cellphones sitting atop a 

dresser. Officers also observed a loaded 22-caliber Mossberg assault rifle on 
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a table next to the bed. Hidden behind a bar in the basement, police officers

discovered an inoperable 40-caliber Smith & Wesson 411 model pistol inside 

an ammunition can, and a large camouflage bag containing four pieces of 

black body armor and two gas masks. On top of the bar, officers discovered a 

box for a 9-millimeter Glock handgun; a plastic bag containing loose 9-

millimeter ammunition; and two boxed 50-round drum magazines for a 9-

millimeter Glock handgun. Police also recovered multiple boxes of ammunition 

for a variety of firearms within two military ammunition cans from the 

basement. 

In the kitchen, officers found an electronic scale with white residue on 

it, a vacuum sealer, and a money counter.

A joint jury trial commenced on August 13, 2018.2 McKenna, Officer 

Lownsbery, and Dauphin County Detective John Goshert, an expert in streetlevel narcotics, testified on behalf of the Commonwealth. Melendez testified 

for the defense. 

McKenna testified that he, Appellant, and the co-defendants “worked 

with one another in the breaking down and selling of cocaine.” Trial Ct. Op. 

at 14.

McKenna’s testimony[,] along with evidence seized from the 

residence established that every few days, a brick of cocaine 

would be sent to the Crooked Hill residence. Prior to the brick 

being broken down, the brick would be kept inside the closet of 

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2 Appellant was tried with Melendez, Luis Ortiz-Cruz, and Dennison Ortiz-Cruz.
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co-defendant Melendez to ensure its safety. In order to prepare 

the brick for sale, [Appellant], along with his co-defendants[,] 

would break down the cocaine and weight it out into individual 

ounces. From there, the pieces would be placed in a blender. 

Once the rocks were blended into powder cocaine, it would then 

be packaged into small one-ounce plastic bags, approximately 

then (10) of which were given to each individual at a time for sale. 

Additionally, McKenna testified that [Appellant] was not a 

recreational cocaine user.

Roughly one (1) kilogram of cocaine, estimated at around 

$30,000, was found hidden within a backpack inside the 

residence. Additionally, sale paraphernalia, such as electronic 

scales, blenders, packaging materials, and a money counter were 

found throughout the house often coated in white residue 

indicating more than just personal use.

Trial Ct. Op. at 15. 

Goshen testified that evidence of narcotics trafficking included high 

quantities of narcotics, large amounts of cash, packaging paraphernalia, and 

firearms indicating traffickers’ heightened security. Id. at 8-9.

The parties stipulated that the 38-caliber Smith & Wesson revolver, HiPoint 9-millimeter handgun, Taurus 9-millimeter handgun, Glock 19 handgun, 

22-caliber Mossberg assault rifle, and 40-caliber Smith & Wesson 411 model 

pistol were stolen property.

On August 18, 2018, a jury convicted Appellant of the above crimes. 

The trial court ordered a Pre-Sentence Investigation (“PSI”).

On October 11, 2018, the trial court sentenced Appellant, a repeat 

felony offender, within the sentencing guidelines to an aggregate term of 
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ninety to two-hundred forty months’ incarceration.

3 Appellant filed a PostSentence Motion, which the trial court denied.

This timely appealed followed. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal:

1. Whether the imposition of an aggregate sentence of ninety (90) 

to two-hundred forty (240) months incarceration was excessive 

given the circumstances of Appellant?

2. Whether the verdict is against the weight of the evidence as 

the Commonwealth was unable to prove beyond a reasonable 

doubt that [Appellant] possessed or received any stolen 

property or that he conspired or possessed with the intent to 

deliver any controlled substances?

Appellant’s Br. at 6. 

In his first issue, Appellant challenges the discretionary aspects of his 

sentence, by contending his “sentence was excessive given the particular 

circumstances of the Appellant.” Pa.R.A.P. 2119(f) Statement, Appellant’s Br. 

at 10. He also “submits the sentencing court failed to consider Appellant’s 

rehabilitative needs.” Id. 

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3 Specifically, after the court noted that it had to sentence Appellant “according 

to what the guidelines have set forth,” N.T. Sentencing, 10/11/18, at 11, the 

court imposed sentences of incarceration as follows: on Count 1-Receiving 

Stolen Property: 30 to 120 months, one month below the mitigated range; 

Count 2-Possession of a firearm prohibited: 30 to 60 months to run concurrent 

with Count 1 sentence; Count 3–Conspiracy to manufacture, deliver or 

possession with intent to deliver: 60 to 120 months, to run consecutive to 

Count 1; Count 4 – Possession with intent to deliver: 60 to 120 months, to 

run consecutive to Count 1 sentence and concurrent with Count 3; Count 5 –

Drug paraphernalia: no further sentence. Id. at 12.
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Challenges to the discretionary aspects of sentencing are not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a 

discretionary sentencing issue, we must determine: (1) whether appellant has 

filed a timely notice of appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify sentence; (3) whether 

appellant’s brief sufficiently addresses the challenge in a statement included 

pursuant to Pa.R.A.P. 2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under the Sentencing 

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). 

In the instant case, Appellant met the first three elements by filing a 

timely Notice of Appeal, preserving the issue in a Post-Sentence Motion, and 

including a Statement of Reasons Relied Upon for Allowance of Appeal 

pursuant to Pa.R.A.P. 2119(f). Before reaching the merits of Appellant’s 

argument, we must review Appellant’s Rule 2119(f) Statement to determine 

if he has presented a substantial question for our review.

Whether a substantial question has been raised regarding a 

discretionary sentence is determined on a case-by-case 

basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A 

substantial question exists only when the appellant advances a colorable 

argument that the sentencing judge's actions were either: (1) inconsistent 

with a specific provision of the Sentencing Code; or (2) contrary to the 
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fundamental norms which underlie the sentencing process.” Id. (citation and 

quotation omitted). 

This Court has held that 

the Rule 2119(f) statement must specify where the sentence falls 

in relation to the sentencing guidelines and what particular 

provision of the Code is violated (e.g., the sentence is outside the 

guidelines and the court did not offer any reasons either on the 

record or in writing, or double-counted factors already 

considered). Similarly, the Rule 2119(f) statement must specify 

what fundamental norm the sentence violates and the manner in 

which it violates that norm (e.g., the sentence is unreasonable or 

the result of prejudice because it is 500 percent greater than the 

extreme end of the aggravated range). 

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000).

In the instant case, without referencing the sentencing guidelines at all, 

“what particular provision of the Code is violated,” or “what fundamental norm 

the sentence violates and the manner in which it violates that norm,” Appellant 

avers in his Rule 2119(f) Statement only that his sentence is excessive and 

the lower court failed to consider his rehabilitative needs. See Appellant’s Brief 

at 10. This Court has consistently held that an allegation that a sentencing 

court “did not adequately consider certain factors does not raise a substantial 

question that the sentence was inappropriate.” Commonwealth v. CruzCenteno, 668 A.2d 536, 545 (Pa. Super. 1995); see also Commonwealth

v. Rhoades, 8 A.3d 912, 918-19 (Pa. Super. 2010) (stating “an allegation 

that the sentencing court failed to consider mitigating factors generally does 
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not raise a substantial question for our review”).4 Appellant has failed to 

raise a substantial question. Accordingly, we decline to review Appellant’s 

sentencing challenge.

In his second issue, Appellant contends that “the verdict [was] against 

the weight of evidence and . . . shocks the conscience[,] . . . and that the 

Commonwealth failed to prove beyond a reasonable doubt that he possessed 

or received any stolen property or that he conspired or possessed with the 

intent to deliver any controlled substances.” Appellant’s Br. at 14. He asserts 

that because Melendez testified that all of the drugs and guns located at 3812 

Crooked Hill Road were his, the Commonwealth failed to establish that 

Appellant possessed or received any stolen property or that he conspired or 

possessed with the intent to deliver any controlled substances. Id. Therefore, 

he concludes, the verdict is against the weight of the evidence. Id. Appellant’s 

issue, as stated, actually presents challenges to both the sufficiency and 

weight of the evidence.

5

 

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4 Moreover, where the sentencing court had the benefit of a PSI, we can 

assume the sentencing court “was aware of relevant information regarding 

the defendant’s character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18 

(Pa. 1988). 

5 Our Supreme Court has underscored the distinction between challenges to 

the sufficiency of the evidence and challenges to the weight of the evidence, 

noting that the remedy for insufficient evidence is an acquittal, while the 

remedy for a verdict against the weight of the evidence is the award of a new 

trial. Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000). 
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With respect to the sufficiency aspect, Appellant avers in his Brief that 

the evidence failed to establish that he possessed or received any stolen 

property or that he conspired or possessed with the intent to deliver any 

controlled substances. Appellant’s Br. at 14, citing 18 Pa.C.S. § 3925(a) and 

35 Pa.C.S. § 780-113(a)(30). He notes that the residence in which he was 

sleeping when police executed the search warrant was not his, and he was not 

under surveillance or a known suspect prior to the execution of the search 

warrant. Appellant’s Br. at 13. He also notes that police found no drugs or 

large amounts of cash on his person, and the items in the bar area of the 

basement were not visible to him. Id. at 13-14. 

To the extent Appellant is challenging the sufficiency of the evidence 

underlying his convictions, we observe that Appellant fails to cite to case law 

and provide discussion of legal concepts pertinent to his sufficiency challenge.

6

 

See Pa.R.A.P. 2101, 2119(a) (requiring conformance with briefing rules, and 

discussion and citation of pertinent authorities). “This Court may quash or 

dismiss an appeal if an appellant fails to conform with the requirements set 

forth in the Pennsylvania Rules of Appellate Procedure.” Commonwealth v. 

Freeland, 106 A.3d 768, 776-77 (Pa. Super. 2014) (citations omitted). 

Additionally, “where an appellate brief fails to provide any discussion of a claim 

with citation to relevant authority or fails to develop the issue in any other 

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6 Specifically, Appellant’s Brief is devoid of any acknowledgement or discussion 

of case law pertaining to constructive possession, a legal concept that is 

pivotally relevant to Appellant’s convictions. See Trial Ct. Op., filed 3/8/19, 

at 14-16. 
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meaningful fashion capable of review, that claim is waived[.]” 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations

omitted). 

Because Appellant’s challenge to the sufficiency of the evidence 

supporting his convictions is not developed in a meaningful fashion capable of 

review, it is waived.

To the extent Appellant challenges the weight of the evidence, he avers 

that because defense witness Melendez claimed responsibility for all of the 

evidence found in the basement, the verdict was against the weight of the 

evidence. Appellant’s Brief at 15. 

We review a weight claim informed by the following well-settled 

standards. “The weight of the evidence is exclusively for the finder of fact, 

who is free to believe all, none[,] or some of the evidence and to determine 

the credibility of the witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 

545 (Pa. Super. 2015) (quotation marks and citation omitted). Resolving 

contradictory testimony and questions of credibility are matters for the finder 

of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000). 

It is well-settled that we cannot substitute our judgment for that of the trier 

of fact. Talbert, supra at 546.

Moreover, appellate review of a weight claim is a review of the trial 

court’s exercise of discretion in denying the weight challenge raised in the 

post-sentence motion; this court does not review the underlying question of 

whether the verdict is against the weight of the evidence. See id. at 545-46.
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“In order for a defendant to prevail on a challenge to the weight of 

the evidence, the evidence must be so tenuous, vague and uncertain that the 

verdict shocks the conscience of the court.” Id. at 546 (internal quotation 

marks and citation omitted). As our Supreme Court has made clear, reversal 

is only appropriate “where the facts and inferences disclose a palpable abuse 

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) 

(citations and emphasis omitted).

A true weight of the evidence challenge concedes that sufficient 

evidence exists to sustain the verdict, but questions the evidence that the jury 

chose to believe. Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. 

Super. 2014). For that reason, the trial court need not view the evidence in 

the light most favorable to the verdict winner, and may instead use its 

discretion in concluding whether the verdict was against the weight of 

the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 

2000).

In denying Appellant’s weight challenge, the trial court found that it was 

not against the weight of evidence for the jury to discredit the testimony of 

Melendez, and credit the testimony of McKenna and Trooper Lownsbery, along 

with the stipulations, to conclude that Appellant possessed or received stolen 

property and that he conspired or possessed with the intent to deliver 

controlled substances. Trial Ct Op., filed 3/8/19, at 11-16.

The court opined that the jury was unconvinced of Melendez’s credibility, 

noting that McKenna testified that Melendez had previously attempted to split 
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up the charges between his fellow co-defendants to lessen each individual’s 

sentence. Id. at 16. The trial court’s detailed analysis also discussed 

McKenna’s testimony, that the 22-caliber Mossberg assault rifle was 

considered to be Appellant’s firearm, that the rifle was always by Appellant’s

side, and that he, Appellant, and his fellow co-defendants worked with one 

another in the breaking down and selling of cocaine. Id. at 13-14. The court 

also addressed Trooper Lownsbery’s testimony that upon entry of the 

basement, officers observed a 22-caliber Mossberg assault rifle located in plain 

view by Appellant’s bed. Id. at 13.

Appellant essentially requests that we reassess and reweigh the 

evidence presented at trial. We cannot and will not do so. Our review of the 

record indicates that the evidence supporting the jury verdict is not tenuous, 

vague, or uncertain, and the verdict was not so contrary as to shock the 

court's conscience. We discern no abuse of discretion in the trial court’s denial 

of Appellant’s weight challenge.

Judgement of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/04/2019